Baynes v Hedger and Others
| Jurisdiction | England & Wales |
| Judge | The Chancellor,Lord Justice Longmore,Lord Justice Goldring |
| Judgment Date | 07 May 2009 |
| Neutral Citation | [2009] EWCA Civ 374 |
| Docket Number | Case No: A3/2008/1891 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 May 2009 |
[2009] EWCA Civ 374
Before: The Chancellor of the High Court
Lord Justice Longmore and
Lord Justice Goldring
Case No: A3/2008/1891
HC07C01001
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, CHANCERY DIVISION
Mr Justice Lewison
MR THOMAS DUMONT (instructed by Messrs Sears Tooth) for the Appellant
MR JEFFREY TERRY (instructed by Messrs Allan Janes) for Respondent 3
MS EMILY CAMPBELL (instructed by Messrs Sheridan) for Respondent 4
Hearing date : 22 April 209
The Chancellor:
Introduction
By her will dated 6th July 1977, as varied by two codicils dated respectively 19th November 1999 and 29th October 2002 Mary Spencer Watson (“Mary”) appointed the first and second defendants and respondents to this appeal to be her executors and trustees (“the Executors”). She bequeathed £2,500 to her god-daughter, the claimant and appellant, Henrietta Baynes (“Hetty”) and other small pecuniary legacies to various friends. She specifically devised her freehold Dunshay Manor Estate, Dorset to the third defendant and respondent the Landmark Trust (“Landmark”) absolutely. She bequeathed the residue of her estate to her executors and trustees on the usual trusts for sale and conversion. She directed them to pay the income thereof to the mother of Hetty the fourth defendant and respondent Margaret Baynes (“Margot”) for her life with reversion equally to her other four children “but not Hetty because she has already benefited”. One of Margot's children predeceased Mary; the remaining three are the 5th, 6th and 7th defendants and respondents.
Mary died a spinster aged 92 on 7th March 2006. Probate of her will and codicils was granted to the Executors on 20th November 2006. For that purpose the net estate of Mary was sworn to be of a value of £2,846,875. The value attributed to the Dunshay Manor Estate was £2,380,000. The balance comprised the value of business assets, chattels and investments and cash after the payment of the debts funeral and testamentary expenses.
On 29th December 2006 Hetty issued proceedings under the Inheritance (Provision for Family and Dependants) Act 1975 seeking an order that reasonable provision be made for her out of the estate of Mary by way of a lump sum or in such other way as the court should think fit. Hetty contends that she is entitled to maintain such a claim as “[a] person….who immediately before the death of [Mary] was being maintained, either wholly or partly, by [Mary]..” within s.1(1)(e) of the Act. If she is, then she has to establish that “the disposition of [Mary]'s estate effected by [her] will….. is not such as to make reasonable financial provision for [her]..”. If Hetty establishes that condition then it is for the court in the exercise of its discretion to determine whether to make any and, if so, which of the orders described in s.2. In relation to both the second and third issues the court is to have regard to the various matters mentioned in s.3. Such matters include the financial resources and needs, both present and foreseeable of all applicants and beneficiaries of the estate of the deceased, the size and nature of the net estate, any physical or mental disability of any applicant or beneficiary and “any other matter, including the conduct of the applicant…which in the circumstances of the case the court may consider relevant” (paragraph (g)).
In due course a claim under the Act was also made by Margot. Margot was diagnosed as suffering from Alzheimer's disease in 2000 and her condition has progressively deteriorated since. Margot's claim was advanced under s.1(1)(e). In addition she claimed under s.1(1B) on the grounds that not only was she living in the same household as Mary but also was living as her civil partner.
These claims came before Lewison J. After a seven day hearing in June and July 2008 he gave judgment on 14th July 2008 dismissing both of them. There is no appeal in relation to Margot's claim and I need say little more about it. In the case of Hetty the judge concluded for reasons I will describe in detail later that (1) she was entitled to pursue her claim under s.1(1)(e), but that (2) she had not established that the will of Mary had failed to make reasonable financial provision for her. In those circumstances he did not go on to consider what order for her provision should be made. At a later hearing on 23rd July 2008 Lewison J refused the application of Hetty for permission to appeal.
On 1st August 2008 Hetty issued her notice of appeal. Rimer LJ gave her permission to do so on 25th November 2008. On 30th March 2009 Landmark issued a respondent's notice out of time seeking to uphold the judge's order on the additional ground that Hetty was not entitled to make the claim at all because on the judge's own findings she did not come within s.1(1)(e). An extension of time was sought at the hearing and opposed by counsel for Hetty on the ground that the notice was weeks out of time and no good reason had been given for the failure to give it in time. But it was not alleged that Hetty or her counsel had sustained any prejudice or that the respondent's notice raised any points not canvassed in the court below. Counsel for Landmark frankly accepted that the need for a respondent's notice had not been appreciated until the preparation for the hearing of Hetty's appeal.
We granted the extension sought and indicated that we would give our reasons in our judgments in due course. For my part I agree with counsel for Hetty that no good reason had been given for the omission to serve the notice in time. But, not only was counsel for Hetty not taken by surprise, the arguments on that point and the points raised on the appeal are so interwoven that it would be unrealistic to limit them to those relevant to the second point alone.
Accordingly there are three issues on this appeal, namely:
(1) Was Hetty “[a] person….who immediately before the death of [Mary] was being maintained, either wholly or partly, by [Mary]..” within s.1(1)(e) of the Act? And if so
(2) Was “the disposition of [Mary]'s estate effected by [her] will…..not such as to make reasonable financial provision for” Hetty? And if not
(3) What (if any) order should now be made?
I shall deal with those issues in that order but first it is necessary to consider in detail the facts of the case and the conclusions of the judge.
The Facts
Mary was born on 7th May 1913. She was the daughter of the well-known artist George Spencer Watson R.A. He bought the Dunshay Manor Estate in 1923. It consists of a manor house dating mostly from 1640, cottages, grazing and woodland extending, in all, to a little under 40 acres. It became and thereafter remained the home of the Spencer Watson family. G. Spencer Watson died before WWII and Mary inherited the Dunshay Manor Estate. In 1955 she leased Dunshay Manor to Mr Leslie Baynes, the husband of Margot. They already had four children, namely the fifth, sixth and seventh defendants and respondents and another daughter, Suzie. Hetty was born the following year on 16th August 1956. Shortly thereafter the close relationship between Mary and Margot, which, in one form or another, was to last until the death of the former, commenced. Leslie Baynes and Margot separated in about 1958 and were divorced in 1964.
Mary was a quasi-parental figure to all Margot's children and exerted a dominant role within their family. She showed considerable generosity to each of them. In 1972 she settled £15,000 on trust for Margot for life with remainder to Hetty for life with remainder to Hetty's children. She bought and sold various houses in and around London in which they all lived during the week. By 1978 the house was 15 The Terrace, Barnes. It had been bought in the name of Margot alone. At about that time Margot spent most of her time in London but Mary remained in Dunshay Manor during the week to concentrate on her career as a sculptress. Mary also bought a flat for Hetty, then aged 22, in Abingdon Villas, London, W8. These were substantial gifts to both Margot and Hetty.
Hetty had started to train at the Royal Ballet School in 1966. By 1969 she turned her ambitions to becoming an actress and obtained her first Equity card in 1974. Thereafter she appeared in various stage productions and films. Ultimately she obtained a part in a film directed by Ken Russell to whom she was married in 1992. There was one child of that marriage, namely Rex who was born on 7th January 1993. The marriage did not last. They separated in 1996 and were in due course divorced. By then the flat in Abingdon Villas had been long since sold and Hetty was living in the matrimonial home at 47 Filmer Road, London. As part of the divorce settlement Hetty agreed to the sale of that property on terms that she received £235,000 from the proceeds of sale. That agreement was embodied in an order of the court made on 18th April 1997 which stipulated that payment of that sum was in full and final satisfaction of all claims Hetty might have against Ken Russell.
Both before the marriage of Hetty to Ken Russell and after their separation Mary lent substantial sums to Hetty. On each occasion the accommodation was sought by Hetty and granted by Mary as a loan to be repaid. All the loans then outstanding were repaid in March 2000 from the sale of Hetty's then flat in Hampstead. On 8th November 2000 Hetty wrote to Mary seeking a further loan from Mary of £60,000 so that she might get “back on the property ladder”. Mary complied...
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